Lawmakers, Homeowners Fight Rules Saying Solar Is Too Ugly To Install
By Ari Phillips
“What if I want a solar panel shaped like the Starship Enterprise?” a Texas state senator asked during a 2011 legislative hearing about solar panel installation in property owning communities, where decisions are guided by strict rules and regulations that tend to put the homogeneity of the group ahead of homeowners’ desires. Another senator chimed in to bring the point home, saying “the problem is that if any of the public driving down the street in the neighborhood can see that stuff sticking up over the fence then all the sudden it affects the look of the neighborhood.”
Homeowners’ associations are naturally conservative, having to appeal to the masses, and many of them find themselves with outdated or unaccommodating solar laws right when residential solar is booming across the country. In the last several years solar installations in the U.S. have increased approximately six-fold from 2,000 megawatts to 12,000 megawatts as installation prices have dropped by more than half. Approximately 200,000 American homes have already gone solar and SolarCity, a top residential solar provider, estimates that another 30 million could benefit from installing a solar system.
If utilities represent the old guard of electricity distribution and view solar as an outside threat to business-as-usual, homeowners’ associations have a similarly unaccommodating perspective. But as momentum builds in favor of distributed renewable energy, both of these longstanding institutions are being forced to accommodate change and integrate residential solar. For much of the last century suburban tract houses with well-kept lawns and uniform fences represented a thriving community, but in a more eco-friendly, consumer conscious age — in which xeriscaping and triple-paned windows are sound economic and environmental investments — HOAs and similar groups are coming face to face with a new era of homeownership.
Stuck In The Past
“The world has changed greatly since the 1970s, but the position of many HOAs in regard to renewable energy has not changed, and individual homeowners pursuing any kind of environmentally responsible home improvements must run a formidable gauntlet thrown down by their neighbors and neighborhood,” writes Kristina Caffrey in her 2011 paper The House of the Rising Sun: Homeowners’ Associations, Restrictive Covenants, Solar Panels, and the Contract Clause.
“The idea of a neighborhood has disintegrated in the last few decades, but HOAs are one mechanism that still holds neighborhoods together,” Caffrey, an attorney in New Mexico, told ThinkProgress. “HOAs can help build community connections between neighbors.”
Caffrey said that the main challenge for aspiring solar installers is the same as it is with many other community issues: navigating a contentious matter with your neighbors.
The idea of a neighborhood has disintegrated in the last few decades, but HOAs are one mechanism that still holds neighborhoods together.
“You have to drive by your neighbors’ houses every day and deal with other neighborly issues,” she said. “If you want to put in a solar installation that may affect your neighbor’s view, you have to walk on eggshells.” And when the situation devolves into litigation, Caffrey said it can create a neighborhood full of bad feelings where no one wants to live. She speaks from experience as well as from research.
“Here in Albuquerque, in my parents’ neighborhood, one of the main issues is view,” she said. “My parents’ neighborhood is in the foothills, and people build homes there so they can get spectacular views. Therefore, the HOA is very picky about anything that obstructs or affects view.”
In other neighborhoods the concern might be what is visible from the street or from other peoples’ backyards. Clotheslines hold a similarly aesthetically divisive role historically in homeowners’ associations. Even though they are far more environmentally friendly than dryers and save significant energy costs, certain associations are resistant to their strewn lines and dangling garments, which can be seen as a smudge on an otherwise serene scene.
Shining Down On All Of Us
The Texas state senators were skeptical of giving homeowners more leeway to install solar, but many state-level lawmakers are leading the way when it comes to aligning the often conservative and draconian covenants, conditions and restrictions (CC&Rs;) of homeowners’ associations with the progressive push for cleaner, more convenient, and even cheaper forms of distributed power. This issue is especially pertinent in Texas, along with California and Florida, as homeowners in those states are overwhelmingly governed by property owners’ associations.
At the end of that 2011 session, Texas actually passed a solar access law saying that property owners’ associations may not prohibit or restrict a property owner from installing a solar energy device. The law has certain caveats allowing HOAs to regulate height, slope, and color in some cases, but Evan J. Rosenthal, a Florida attorney with an expertise in residential solar installations, says the law is good in that it enumerates exactly the sort of restrictions and prohibitions are enforceable rather than setting out vaguer guidelines.
“Restrictive covenants can control anything from the color of your house to the length of your lawn to where you can park your car,” Rosenthal told ThinkProgress. “A number of HOAs also utilize restrictive covenants to restrict or even outlaw altogether residential solar units.”
He said that a number of homeowners have been at the losing end of lawsuits where they have been forced to remove solar units they installed because they conflicted with an HOA’s restrictive covenants.
After Tim Adams, an Omaha orthodontist, spent $40,000 to install solar panels on his Nebraska home, his HOA sued him, claiming Adams violated the decades-old covenants against “solar heating and cooling devices.” Adams argued that the HOAs covenants didn’t specify solar panels so the rules didn’t apply. The district judge refused to rule in favor of either side; however, he said that the association had been “consistently inconsistent in the manner in which ‘improvements’ have been reviewed and approved, which doesn’t allow for good direction to those homeowners desiring to improve their homes and/or property.”
Rosenthal’s research showed that, as of last summer, 40 states had passed some sort of solar access law designed to protect the right of homeowners to install solar units. Of these, 21 addressed this issue of restrictive covenants imposed by HOAs. However, he considers the vast majority of these, along with the number of other local government ordinances, to be flawed.
These laws must be very carefully crafted in order to fully protect homeowners.
“State and local governments have certainly made progress just by recognizing this issue,” he said. “But these laws must be very carefully crafted in order to fully protect homeowners.”
This year Minnesota passed a bill designed to guide the permitting of rooftop solar projects by HOA boards, allowing HOAs to impose certain reasonable restrictions while at the same time removing barriers to solar energy.
“If you live on a farm, you can put a windmill on your land,” said Minnesota state representative Will Morgan, who introduced the bill. “Solar represents a chance for suburbanites to do something about greenhouse gas emissions. My motive is to make this available to as many people as possible in a reasonable manner.”
Even when solar-friendly laws have been put in place, associations and homeowners can have trouble interpreting them. Rosenthal said that in some states where solar access laws have been passed, it can be even harder for homeowners to install a solar system due to “vague and unclear” laws that leave too much wiggle room for HOAs.
While the cost of solar installation can present barriers to industry growth at the consumer level, experts say legal constraints must not be overlooked. Complex laws and unclear regulations, plus the prospect of legal fees associated with any battle with a property association, can easily be enough to deter a homeowner already on the fence about whether they have the time and money to invest in rooftop solar.
Rosenthal believes HOAs have a proactive role to play in the realm of residential solar use — but only if they really want to — by introducing things like pro- rather than anti-solar covenants. New communities under development could do even more.
“Large scale communities currently being developed could be equipped with solar panels by developers who can make wholesale purchases for a better price,” said Rosenthal. Orienting homes so they have good southern exposure to the sun is another easy option, as is establishing a sort of “solar access zone” around buildings to prevent certain trees from growing too tall or leafy.
For example the aptly named Armory Park Del Sol, a ninety-plus home development in Tucson, Arizona, was built with solar water heaters and electrical systems. According to Rosenthal’s report, residents are paying just about $300 per year in electricity bills as a result, a feat no less impressive considering they are living in a hot desert region that almost necessitates lots of air conditioning.
“CCRs imposed by communities in times past were frequently intended to achieve a purpose most would consider insidious today,” Rosenthal wrote in his report. “Consider, for example, the restrictive covenants enacted by communities in the mid-20th century designed to prevent African Americans and other minority groups from owning property. Perhaps someday future generations will view the efforts of community associations to restrict renewable energy technology with similar disdain.”
Virginia Is For Solar Lovers
This year Virginia joined the list of states passing solar-friendly laws to prevent HOAs from obstructing residents’ view of the future. The “Solar Freedom” Act was ushered through by Virginia state senator Chap Peterson. On his blog Peterson writes that he worked for six years to get the law passed. In 2012 he carried a bill through the Legislature only to have it vetoed by the governor. Then this year he “got lucky” because “the community association lobbyists had bigger fish to fry.” According to Peterson, the new law essentially wipes out all HOA bylaws and regulations which had inhibited the use of solar panels.
Solar moves very quickly … Now there’s tons of examples of how it can be done tastefully.
Philip Haddix, program director at the Solar Foundation, a nonprofit focusing on solar energy education, said Virginia’s new solar law shows how legislation alone isn’t enough. “Based on that new law, associations will have very little idea of what the changes mean or how to incorporate solar into their guidelines,” he told ThinkProgress.
Haddix recommended that community associations go above and beyond the state-level guidelines in an effort to make CC&Rs; that are easier to work with. Taking extra steps to clarify intentions beyond the basic solar laws signals to community members that solar is accepted and helps prevent timely and costly confusion. With solar technology moving so quickly, including installation techniques and panel appearance, even if property owners’ associations are conducive to solar it can be a challenge for them to keep their CC&Rs; both up-to-date and easy to interpret.
“Solar moves very quickly,” said Haddix. “Some of these guidelines were written in the 70s and 80s when solar was actually less aesthetically pleasing in some ways. Now there’s tons of examples of how it can be done tastefully.”
A big part of Haddix’s job is to deal with members of HOA boards, architecture committees, or similar groups and help them understand what the solar laws they encounter actually mean. He said even the people designing the guidelines don’t necessarily understand the impact those restrictions might have. Restricting the location, tilt, and orientation of installations can have a bigger impact on the energy investment of a homeowner than anticipated. But removing all restrictions is not the way to go either.
“There are competing interests out there that need to be protected,” said Haddix. “As long as restrictions are designed in a good faith effort to balance interests, I think that’s all we can ask for.”
Going forward, if new communities and subdivisions do end up incorporating solar into their master plans, it will make it more likely that competing interests can find quick and reasonable compromises to legitimate community issues surrounding solar. For instance, if solar isn’t a feasible option, new communities could sign cooperative power purchasing agreements with nearby solar or wind farms to provide clean energy to the entire community at a locked-in rate. Or even just installing solar on community buildings that are part of the association would send a powerful message that solar is welcomed.
“It’s hard to go back and create these elements once the community plans are made,” said Haddix.
In the meantime, approximately half of the 25 million townhouses, subdivisions, and gated-community homes that are part of homeowners’ associations in the U.S. are suitable for residential solar installations, according to the Solar Foundation. If one-fifth of these homes, or five million, installed small, 1.5-kilowatt systems, they could create 7.5 gigawatts of electricity — which is more than half all of the solar power capacity currently available in the U.S. and more than double all of Australia’s current solar capacity. If five percent of these homes installed average-sized solar systems they could generate 3.3 gigawatts of solar capacity for the grid, about equal to what Australia currently has.
It has been shown that homeowners are more likely to install solar panels on their homes if others in their neighborhood are doing so as well. This effect could easily be amplified with a little help from HOAs.